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It Smells Like . . . Victory

Sitting in the front row, the one with the sign that said “Attorneys and Police Only” even though defendants in cuffs were also allowed to sit there, I heard my client sit down behind me. He said hello, and I turned to return the greeting.

Next to my client was an old man. My client was big; robust and tall. The old man next to him was slight; short and thin. He had that wiry look of a guy who would do far better in a fight than his size would lead you to expect. But he wasn’t looking mean and tough. He had a huge smile, as if we were at a party and he was the host. I introduced myself and shook his hand. It was clear he didn’t speak English well, but he wasn’t afraid of trying.

My son, he gonna win today.

He didn’t just say that. It’s not that I believe such things, because they’re absurd and baseless, but like an NFL football player (watcher, for that matter), I have things that I just don’t do because they’re, well, unlucky. One such thing is predict victory. I never do it. When someone else does it in front of me, I cringe. That’s it, I think. We’re jinxed. Ridiculous, I know, but that’s what runs through my head.

We talked a bit about what would be happening. We were there for a decision on motions. Included was a motion to dismiss, which I thought to be exceptionally well-founded, but never-the-less unlikely to be granted. It’s not that judges necessarily mind a case getting tossed. It’s just that they prefer someone else to do it, so they aren’t accountable to the angry eyes of the assistant’s supervisor or the administrative judge’s whispers about how it doesn’t look good for a judge to be too harsh on the prosecutor.

My client was a good guy. He had done nothing to harm anyone, and no one was, in fact, harmed. He was there because someone decided that a regulation that served to raise money for the government in a particularly effective fashion, needed more love than my client gave it. It’s not like he wasn’t warned in advance, pay now or pay later. He chose later.

I had already had a long discussion with my client about what we were doing, why, and what we might anticipate the court doing, and what it meant for him. He was clear about two things; that there was method to our approach, and that there was an excellent likelihood that despite our method, we would not find comfort in the judge’s ruling. This is often a hard pill to swallow for defendants, who want to believe that the law is the law, and therefore it’s the law that should set them free. They expect science. They get art. They aren’t always able to fully appreciate it.

People are used to plumbers. The pipe has a leak? The plumber fixes the leak. The plumber guarantees the pipe won’t leak again for a year. The plumber gets paid and the pipe doesn’t leak. Everybody is happy.

Lawyers aren’t plumbers. We may do all the right things to keep the pipe from leaking, and yet it still leaks. There is a guy in a robe who decides if we fixed the pipe well enough, and there is a guy at the next table bent on making sure it leaks anyway. It’s a hard sell to someone who wants his pipe fixed to be told that we can do the work perfectly, but it might still leak. And we can’t offer a guarantee.

After the case was called, argued and the judge ruled on motions, my client and I turned to leave the well. I saw his father sitting there in the same spot. There was still a huge smile on his face. No larger, but no smaller, than he had when I first saw him.

The case was dismissed. My client’s father, however, didn’t know it. It’s unclear whether he was able to hear what was being said up front, but even if he could, the judge’s explanation would have been far beyond his comprehensive abilities. But still, he sat there smiling. Ear to ear smiling.

As is my way, I told my client to grab his father and get out of there. Again, it’s not like I have any basis to think this, but my sense has always been to get the hell out of Dodge after a win as fast as possible. That way, it’s too late for the judge to change his mind. And yes, it did happen once, though I was called at the office to return to court that day. And you would be shocked to find out which judge it, but I won’t tell.

I quickly headed for the door, with my client and his father in tow. As soon as the door slammed shut behind us, I heard my client’s father ask him, “so whaz happened?” My client said, “I won, papa.”

His father, still smiling exactly as he had before, replied, “See? I told you you gonna win. See?” He gave his son a hug. Then he looked at me and winked.

Tangential, but reminds me of something Bloomberg said once in an interview, and that many good salesman follow “Once you’ve made a sale, leave.” Some people need to be told this, but the naturals intuit this.

No congats allowed. We do what we have to do to defend. Some other guy then passes judgement. We can only be responsible for what we do, and not for the other guy. If the other guy gets it right, then he deserves the congrats, if anyone. Of course, he really shouldn’t get congrats for getting it right. That’s what he’s paid to do.

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Scott H. Greenfield

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